Citation Nr: 0613343
Decision Date: 05/08/06 Archive Date: 05/17/06
DOCKET NO. 90-05 639 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for asthma, bronchitis,
chronic sinusitis, and a deviated nasal septum.
2. Entitlement to a disability rating in excess of
10 percent for allergic rhinitis.
3. Entitlement to an effective date prior to February 15,
1989, for the grant of service connection for allergic
rhinitis.
REPRESENTATION
Veteran represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
N. W. Fabian, Counsel
INTRODUCTION
The veteran served on active duty from July 1962 to July
1965.
These matters come to the Board of Veterans' Appeals (Board)
from an April 1989 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO). In that rating
decision the RO denied service connection for asthma,
bronchitis, chronic sinusitis, a deviated nasal septum, and
allergic rhinitis. The veteran perfected an appeal of that
decision.
The veteran's claim has a long appellate history, including
multiple appeals to the United States Court of Appeals for
Veterans Claims (Court). The appellate history includes a
finding that the issue on appeal is entitlement to service
connection, and not the receipt of new and material evidence,
although the Board had denied service connection for a
respiratory disorder in November 1974. The Board most
recently remanded the case to the RO in September 2001. As a
result of evidence developed in conjunction with that remand,
in a May 2005 rating decision the RO granted service
connection for allergic rhinitis, with an effective date of
February 15, 1989, and assigned a 10 percent rating. The
veteran perfected an appeal of the assigned rating and the
effective date established for the grant of service
connection.
In various statements the veteran has raised the issues of
entitlement to increased ratings for hearing loss and a right
wrist disability; service connection for sleep apnea, heart
disease and/or defect with chest pain, pulmonary
hypertension, anxiety, depression, stress, nervousness,
personality changes, migraine headaches, a urethral
stricture, back pain, abdominal pain, a prostate condition,
and myopia; and an earlier effective date for the grant of
service connection for tinnitus. These issues have not yet
been addressed by the RO, and are referred to the RO for
appropriate action. See Godfrey v. Brown, 7 Vet. App. 398
(1995) (the Board does not have jurisdiction of issues not
yet adjudicated by the RO).
The issue of entitlement to a higher rating for allergic
rhinitis, including a total rating based on individual
unemployability, is addressed in the remand portion of the
decision below and is remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The preponderance of the medical evidence indicates that
the veteran does not currently have asthma, bronchitis, or
chronic sinusitis.
2. The veteran's deviated nasal septum is congenital in
nature, is not the result of an in-service disease or injury,
and was not aggravated during service.
3. In a November 1974 decision the Board denied entitlement
to service connection for a respiratory disorder, which was
then diagnosed as allergic rhinitis.
4. Following the November 1974 decision the veteran did not
again claim entitlement to service connection for a
respiratory disorder until February 15, 1989.
CONCLUSIONS OF LAW
1. Asthma, bronchitis, chronic sinusitis, and a deviated
nasal septum were not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002);
38 C.F.R. § 3.303 (2005).
2. Entitlement to an effective date prior to February 15,
1989, for the grant of service connection for allergic
rhinitis is not shown as a matter of law. 38 U.S.C.
§ 4004(b) (1970); 38 U.S.C.A. §§ 5101, 5110 (West 2002);
38 C.F.R. § 19.104 (1974); 38 C.F.R. §§ 3.155, 3.400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of the in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See
38 U.S.C.A. §§ 1110, 1131 (West 2002); Hickson v. West, 12
Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (2005).
Asthma and Bronchitis
The veteran contends that he currently has asthma and/or
bronchitis that are related to multiple respiratory symptoms
that he had during service, or due to exposure to mustard gas
or chlorine gas. As an alternative, he contends that he had
the symptoms of asthma since he was a child, and that the
disorder was aggravated during service.
A veteran is presumed to have been in sound condition when
enrolled for service, except for any disease or injury noted
at the time of enrollment, or where clear and unmistakable
evidence demonstrates that the injury or disease existed
before enrollment and was not aggravated by such service.
38 U.S.C.A. §§ 1111, 1137 (West 2002); see Wagner v.
Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R.
§ 3.304(b) (2005). The report of examination on the veteran
entering service in July 1962 shows that the lungs and chest
were normal, and there is no medical evidence of record
showing that he had asthma or bronchitis prior to entering
service. The Board will, therefore, treat his claim as a
claim for service incurrence.
The veteran's service medical records indicate that he was
hospitalized in April 1964 for acute bronchopneumonia or
bronchitis, organism undetermined. His claim is, therefore,
supported by evidence of a related in-service disease. For
the reasons explained below, however, the Board finds that
the preponderance of the probative evidence shows that he
does not currently have asthma or bronchitis that is related
to the acute illness treated during service. Hickson, 12
Vet. App. at 253.
Regarding mustard gas exposure, asthma and bronchitis are
included in the list of diseases to which a presumption of
service connection applies for veterans who experienced
whole-body exposure to nitrogen or sulfur mustard in service.
See 38 C.F.R. § 3.316 (2005). The veteran's service medical
records are negative for any complaints or clinical findings
attributed to mustard gas exposure. The RO requested
verification of the claimed exposure from the service
department, but the service department responded that the
records indicated that the veteran had not suffered mustard
gas exposure. The service department provided evidence that
the gas used in gas mask training while the veteran was in
service was chlorine gas, not mustard gas, but there is no
evidence of record indicating that he has any chronic
pulmonary problems as a result of exposure to chlorine gas.
Following the hospitalization in April 1964, there is no
evidence of any lung or bronchial disorder until September
1973. When examined on separation from service in May 1965,
the veteran's lungs and chest were found to be normal. The
veteran presented private medical records and an April 1988
report showing that he had been treated in November 1967 and
January 1968 for an upper respiratory infection. The records
and the report do not, however, make any reference to asthma
or bronchitis.
The veteran underwent a VA medical examination in September
1973, during which he reported the hospitalization in 1964.
He denied having frequent upper respiratory infections,
bronchitis, emphysema, or any symptoms of bronchial asthma at
that time. He complained of shortness of breath after
walking two blocks, with chest pains and palpitations (he was
being examined due to a claimed heart defect), and coughing
in the mornings. Physical examination did not reveal any
clinical evidence of a pulmonary disorder, but pulmonary
function testing revealed what was interpreted to be
decreased ventilatory capacity.
During a March 1974 VA examination he again complained of
shortness of breath with walking, but denied having bronchial
asthma. A chest X-ray was normal, but pulmonary function
tests were interpreted as showing a moderate obstructive
defect.
VA treatment records and multiple VA examinations indicate
that the veteran has received ongoing treatment for chronic
upper respiratory symptoms, which were diagnosed as allergic
rhinitis. In conjunction with that treatment he reported a
history of asthma since 1962, and "decreased breathing
capacity." In November 1974 he reported having asthma, and
complained of shortness of breath, and the medical care
provider entered a diagnosis of "asthma." That assessment
was not, however, supported by any clinical or diagnostic
findings showing that the veteran had asthma, in that the
examination of the lungs and chest was normal and no
diagnostic testing was conducted. For that reason the
November 1974 treatment record is not probative of whether
the veteran has asthma. See LeShore v. Brown, 8 Vet. App.
406, 409 (1995) ("Evidence that is simply information
recorded by a medical examiner, unenhanced by any medical
comment by that examiner, does not constitute competent
medical evidence. . . .").
The RO asked the VA medical center (MC) to provide a medical
opinion on whether the veteran had a chronic disorder
affecting the chest or lungs and, if so, whether that
disorder was related to the bronchitis or bronchopneumonia
that was treated during service. In a March 1998 report the
Chief of Pulmonary and Critical Care Medicine summarized the
veteran's treatment records, including his service medical
records, and provided the opinion that the veteran did not
have a chronic pulmonary disability that was related to
service. He noted that chest X-rays in April 1964, May 1965,
September 1973, and March 1974 were all negative for any
pathology, and that physical examinations in September 1973,
March 1974, September 1988, and March 1989 were negative for
any pulmonary abnormality. The physician reviewed the
results of the March 1974 pulmonary function studies and
found those results to be normal, and not indicative of
reduced breathing capacity. He stated that the two
indicators that had been interpreted as showing a ventilatory
defect were greatly dependent on patient effort, and were
inconsistent with the indicators that were not so dependent.
Because that opinion was based on review of the veteran's
medical records and supported by clinical findings and a
rationale, it is highly probative. See Owens v. Brown, 7
Vet. App. 429, 433 (1995) (an opinion that is based on review
of the entire record is more probative than an opinion that
is based on the veteran's reported history); Hernandez-Toyens
v. West, 11 Vet. App. 379, 382 (1998) (whether the physician
provides a basis for his/her opinion goes to the weight or
credibility of the evidence).
In an additional March 1998 report a staff physician in
Pulmonary Medicine stated that he had reviewed the veteran's
claims file and found no evidence of a chronic respiratory
condition while the veteran was in service, although he had
been treated for acute bronchitis. He found that the medical
evidence showed that the veteran had allergic rhinitis, but
found no evidence of bronchitis or asthma during service or
prior to September 1973. He found that the pulmonary
function studies in September 1973 showed a mild airflow
obstruction, which was consistent with asthma or bronchitis
in association with allergic rhinitis.
The staff physician did not, however, make any findings
regarding the reliability of the September 1973 test results
in terms of the subjective nature of the specific indicator
and its relationship to the other measurements of pulmonary
functioning. In addition, he did not refer to any current
clinical findings showing that the veteran had asthma or
bronchitis, but based the assessment of a mild airflow
obstruction on test results obtained almost 25 years
previously. See Degmetich v. Brown, 104 F.3d 1328, 1332
(Fed. Cir. 1997) (the veteran must currently have the claimed
disability to support a grant of service connection). For
that reason the opinion of the staff physician is of low
probative value in determining whether the veteran currently
has a chronic pulmonary disorder.
The veteran presented a March 2000 private medical opinion
indicating that the upper respiratory symptoms documented
during service were not inconsistent with a diagnosis of
severe inhalation allergies. The physician did not find that
the veteran had any chronic pulmonary problems that were
related to the acute bronchitis treated during service.
VA treatment records beginning in February 2002 and an
October 2005 private medical report indicate that the veteran
reported having asthma with wheezing and shortness of breath,
but do not document any objectively demonstrated clinical or
laboratory findings to support a diagnosis of asthma. For
that reason the VA treatment records are not probative of
whether he has a current diagnosis of asthma or bronchitis.
LeShore, 8 Vet. App. at 409.
Following the most recent remand by the Court, in May 2002
the RO asked the VAMC to conduct a complete respiratory and
pulmonary evaluation in order to determine whether the
veteran had any respiratory disorder that was related to
service. During the May 2002 examination the veteran
complained of chronic nasal congestion, constant discharge, a
productive cough, wheezing, and shortness of breath, and
stated that the symptoms started when he was in service.
Examination of the lungs was normal. The examiner reviewed
the evidence in the claims file and provided the opinion that
although the allergic rhinitis was at least as likely as not
related to the upper respiratory symptoms documented during
service, there was no objective evidence of parenchymal
disease. The examiner found that the absence of any
parenchymal lung disease was shown by serially normal chest
examinations, normal pulmonary function testing since 1974,
and normal chest X-rays through May 2002.
The veteran underwent an evaluation in the Pulmonary Care
Clinic in June 2002. The Chief of Pulmonary and Critical
Care (who also provided the March 1998 medical opinion)
reviewed the veteran's medical records and noted the results
of the March 1974 pulmonary function tests, and again found
that the indicator that was relied upon in determining
decreased breathing capacity was highly effort-dependent and
that the test results should be interpreted as normal. The
physician also reviewed the results of pulmonary function
tests conducted in September 2001 and June 2002, and found
that that testing showed no abnormalities. The report of the
pulmonary function tests done in June 2002 indicates that the
test results were skewed due to the veteran's behavior when
the test was conducted, but that the test results were
normal. Additional testing in August 2002 was interpreted by
the Chief of Pulmonary and Critical Care as normal. Because
the May and June 2002 medical opinions were based on review
of the evidence in the claims file and supported by clinical
findings and rationale, they are highly probative. Owens,
7 Vet. App. at 433; Hernandez-Toyens, 11 Vet. App. at 382.
The veteran has presented newspaper articles and treatises
regarding the causes and manifestations of asthma and other
respiratory disorders, including asthma due to allergies.
This evidence is not relevant in determining whether he
currently has asthma or bronchitis.
In summary, the September 1973 and March 1974 pulmonary
function tests indicated an obstructive defect in pulmonary
functioning. That laboratory finding has not, however, been
supported by clinical findings showing that the veteran
currently has lung or bronchial disease, and the Chief of
Pulmonary Care found that the test results should be
interpreted as normal. Multiple medical opinions, based on
review of the evidence of record, clinical findings, and
rationale, show that the veteran does not currently have
asthma or bronchitis. The veteran's assertion that he has
asthma is not probative because he is not competent to
provide evidence of a medical diagnosis. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). The Board finds,
therefore, that the preponderance of the probative evidence
shows the absence of a current medical diagnosis of
disability. For that reason the criteria for a grant of
service connection are not met, and the preponderance of the
evidence is against the claim of entitlement to service
connection for asthma and bronchitis.
Chronic Sinusitis
In his February 1989 claim the veteran claimed entitlement to
service connection for chronic rhinitis, chronic rhinorrhea,
chronic pansinusitis, chronic frontal sinusitis, and chronic
ethmoid sinusitis, all as separate and distinct disabilities.
Following the grant of service connection for allergic
rhinitis in May 2005, he has continued to assert that the RO
erred in not granting service connection for the other upper
respiratory disorders that he claimed in February 1989.
The medical evidence indicates that the chronic rhinorrhea
(nasal discharge) is a symptom of allergic rhinitis, and not
a separate and distinct disability. In addition, the medical
evidence does not show that he has chronic sinusitis of any
type. The symptoms documented during service were found to
be consistent with allergic rhinitis, and there is no
reference to any complaints or clinical findings in service
attributed to sinusitis. An August 1973 VA treatment record
indicates that he had sinusitis, but that assessment was
based on his report and not supported by any clinical or
laboratory findings.
None of the VA medical examinations beginning in September
1973 reflect a diagnosis of sinusitis. X-rays of the sinuses
in March 1974 showed no evidence of sinusitis. The VA
examiner in May 2002 found that the veteran's upper
respiratory symptoms were due to allergic rhinitis, not
sinusitis. VA treatment records show that he received
ongoing treatment for allergic rhinitis, with no reference to
sinusitis until May 2002 (two weeks following the VA
examination); he was then given antibiotics for acute
sinusitis. The medical evidence does not indicate that he
has chronic sinusitis that is distinct and separate from
allergic rhinitis. In the absence of a current medical
diagnosis of chronic sinusitis, the criteria for a grant of
service connection are not met. See Rabideau v. Derwinski, 2
Vet. App. 141 (1992) (a grant of service connection requires
medical evidence showing that the veteran currently has the
claimed disability). The Board finds, therefore, that the
preponderance of the evidence is against the claim of
entitlement to service connection for chronic sinusitis.
Deviated Nasal Septum
The medical evidence shows that in September 1988 the veteran
underwent a septoplasty and turbinoplasty for a deviated
nasal septum and hypertrophied inferior turbinates. His
claim is, therefore, supported by a medical diagnosis of
disability. The evidence does not reflect, however, an in-
service disease or injury, or a medical nexus to military
service.
The veteran claimed entitlement to service connection for the
deviated nasal septum in February 1989, as well as chronic
partial airway obstruction, a scar, loss of part of the nose
(ala), and special monthly compensation for "loss"
resulting from the nasal surgery. He originally contended
that the deviated nasal septum, and consequently the
residuals of the surgery, were incurred in service.
The VA medical examiner in May 2002 reviewed the service
medical records and found no evidence of any disease or
injury that would have caused a deviated nasal septum. The
examiner then determined that the deviated nasal septum was
congenital, due to the absence of any evidence of trauma.
After this finding the veteran asserted that although the
defect was congenital, it had been aggravated during active
service.
Congenital or developmental defects are not diseases or
injuries within the meaning of the applicable statutes. See
38 C.F.R. § 3.303(c) (2005); VAOPGCPREC 82-90. Because the
medical evidence indicates that the deviated nasal septum is
congenital, service connection cannot be granted for the
claimed disability or any purported disability arising from
the September 1988 surgery.
Although the veteran claims that the congenital abnormality
was aggravated during service, there is no evidence of any
complaints or clinical findings regarding a deviated nasal
septum during service or for more that 20 years thereafter.
See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d
1330 (Fed. Cir. 2000) (the absence of treatment for the
disability for many years after service is evidence that the
disability was not aggravated during service). The examiner
in May 2002 provided the opinion that there was no increase
in disability during service beyond that attributable to the
natural progress of the disease. Assuming, without so
finding, that service connection could be granted for the
deviated nasal septum and residuals of the surgery, the
evidence does not show that the congenital defect was
aggravated during service. See 38 U.S.C.A. § 1153 (West
2002); 38 C.F.R. § 3.306 (2005). For these reasons the Board
finds that the criteria for a grant of service connection are
not met, and that the preponderance of the evidence is
against the claim of entitlement to service connection for a
deviated nasal septum and any residuals of the September 1988
surgery.
Earlier Effective Date for Service Connection for Allergic
Rhinitis
When a claim is disallowed by the Board and not appealed,
that decision becomes final and a claim based on the same
factual basis may not be considered. 38 U.S.C.A. § 4004(b)
(1970); 38 C.F.R. § 19.104 (1974). In determining the
effective date of service connection based on a finding that
new and material evidence has been submitted, if the evidence
is received after a final disallowance, the effective date is
the date of receipt of the new claim or the date entitlement
arose, whichever is later. 38 C.F.R. § 3.400(q) (2005). The
"date of the claim" means the date of the application based
on which benefits are awarded, not the original claim for
service connection. See Sears v. Principi, 16 Vet. App. 244,
246-47 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003).
The veteran contends that he is entitled to an effective date
in August 1973 for the grant of service connection for
allergic rhinitis because that is when he initially claimed
entitlement to service connection for the disorder. The
August 1973 claim was, however, finally denied by the Board
in November 1974 when the Board denied service connection for
a chronic respiratory disorder, which was then diagnosed as
allergic rhinitis. Because the Board denied service
connection in November 1974, the August 1973 claim is no
longer viable and an effective date based on the August 1973
claim is precluded as a matter of law.
Following the Board's November 1974 decision, the veteran did
not again claim entitlement to service connection for a
respiratory disorder until February 15, 1989. With the
receipt of new and material evidence, the RO granted service
connection with an effective date of February 15, 1989.
The veteran submitted a statement in September 1979, which he
characterized as "another appeal of my medical claim for
disability benefits." That statement does not constitute a
claim for service connection for a respiratory disorder. In
explaining the statement the veteran indicated that he was
claiming entitlement to higher ratings for his service-
connected disabilities, which the Board had also denied in
November 1974, not service connection for an additional
disability. Statements submitted by the veteran in May 1984
and July 1985 do not constitute claims for service connection
because the veteran indicated that he was again claiming
entitlement to higher ratings for his service-connected
disabilities, not service connection.
In an August 1987 statement the veteran requested copies of
his service medical records and stated that he wanted to
reopen his claim. Although his statement indicates his
intent to establish service connection, he did not describe
the disability for which he was seeking service connection.
See Crawford v. Brown, 5 Vet. App. 33, 35 (1993) (in order to
constitute an informal claim for service connection, the
document must identify the benefit being sought); 38 C.F.R.
§ 3.155 (2005). Because none of the statements received
prior to February 15, 1989, constitutes a claim for service
connection for a respiratory disorder, the Board finds that
entitlement to an effective date prior to February 15, 1989,
for the grant of service connection for allergic rhinitis is
not shown as a matter of law.
Development of the Claims
Regarding VA's duty to inform the veteran of the evidence
needed to substantiate his claims for service connection, the
RO notified him of the information and evidence needed to
establish entitlement to service connection in December 2001,
April 2003, and May 2005. In those notices the RO also
informed him of the information and evidence that he was
required to submit, including any evidence in his possession,
and the evidence that the RO would obtain on his behalf. The
Board finds, therefore, that VA has fulfilled its duty to
inform the veteran of the evidence he was responsible for
submitting, and what evidence VA would obtain in order to
substantiate his claims. Although the notices were sent
following the April 1989 decision on appeal, the delay in
issuing the notice was not prejudicial to the veteran because
the RO re-adjudicated the claims, based on all the evidence
of record, after the notices were sent. Because service
connection has been denied, any question as to the
appropriate disability rating or effective date is moot, and
there can be no failure-to-notify prejudice to the veteran.
See Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506
(U.S. Vet. App. Mar. 3, 2006).
Regarding the duty to assist the veteran in obtaining
evidence in support of his claims for service connection, the
RO has obtained his service medical records and the VA
treatment records he identified. The RO also made multiple
attempts to obtain private treatment records that he
identified, and either obtained the records or received
notice from the custodian of the records that they were no
longer available. The RO also provided him VA medical
examinations and obtained multiple opinions regarding the
claimed etiology of his respiratory complaints.
The documents in the claims file indicate that the veteran
was awarded disability benefits from the Social Security
Administration (SSA) in August 2003, with an effective date
in June 2002. There is no indication that the SSA records
contain any evidence regarding the etiology of the claimed
disabilities, or any medical evidence dated prior to November
1967. The Board finds, therefore, that the SSA records are
not shown to be relevant to the issues being decided.
The veteran has not indicated the existence of any other
evidence that is relevant to his appeal, and given the
extensive and prolonged development undertaken since February
1989 the Board concludes that all relevant data has been
obtained for determining the merits of his claim.
Regarding the appeal to establish entitlement to an earlier
effective date, the Court has held that failure to comply
with the duty to notify provisions of the statute is not
prejudicial to the veteran if, based on the facts alleged, no
entitlement exists. See Valiao v. Principi, 17 Vet. App.
229, 232 (2003). In addition, a veteran claiming entitlement
to an earlier effective date is not prejudiced by failure to
provide notice if, based on the facts of the case,
entitlement to an earlier effective date is not shown as a
matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410
(2004) (per curium). As shown above, the veteran is not
entitled to an earlier effective date as a matter of law.
The Board finds, therefore, that failure to notify him of the
evidence needed to establish entitlement to an earlier
effective date is not prejudicial to him.
ORDER
The claim of entitlement to service connection for asthma and
bronchitis is denied.
The claim of entitlement to service connection for chronic
sinusitis is denied.
The claim of entitlement to service connection for a deviated
nasal septum is denied.
The claim of entitlement to an effective date prior to
February 15, 1989, for the grant of service connection for
allergic rhinitis is denied.
REMAND
The veteran has appealed the rating initially assigned for
allergic rhinitis, and contends that he is entitled to a
50 percent rating. He has not, however, been informed of the
evidence needed to establish entitlement to a higher rating.
See Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506
(U.S. Vet. App. Mar. 3, 2006).
The veteran has stated that he was awarded SSA disability
benefits due to the service-connected allergic rhinitis. The
records are shown to be relevant to the rating assigned for
the allergic rhinitis, including the veteran's assertion that
he is unemployable due to that disability, and a copy of the
SSA decision, as well as the medical evidence relied upon in
reaching that decision, should be considered by the Board in
determining the merits of the appeal. See Masors v.
Derwinski, 2 Vet. App. 181 (1992).
The evidence indicates that since August 2005 the veteran has
received treatment for allergic rhinitis from a private
physician. The records of that treatment are relevant to the
rating assigned, and should be considered by the Board. In
addition, the veteran has not undergone a VA examination
since May 2002, and that examination was conducted to
determine whether service connection was warranted, not the
appropriate rating. For that reason the veteran should be
provided a current examination.
Accordingly, this issue is remanded for the following:
1. Provide the necessary notice to the
veteran regarding the evidence needed to
substantiate his claim for a higher
rating for allergic rhinitis.
2. Obtain the names and addresses of all
medical care providers who treated the
veteran for allergic rhinitis since
August 2005. After securing any
necessary release, obtain copies of such
records that are not in file.
3. Obtain the SSA decision and its
supporting medical documents.
4. Provide the veteran a VA medical
examination in order to determine the
nature and severity of the manifestations
of allergic rhinitis. The claims file
and a copy of this remand should be made
available to and be reviewed by the
examiner. The examination should include
any diagnostic tests or studies that are
deemed necessary for an accurate
assessment.
5. After undertaking any additional
development deemed appropriate in
addition to that requested above, re-
adjudicate the issue remaining on appeal.
In re-adjudicating the appeal, consider
the veteran's assertion that he is not
able to work due to the service-connected
allergic rhinitis. If the benefit sought
on appeal remains denied, provide the
veteran and his representative a
supplemental statement of the case.
The case should then be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of
this case. The veteran has the right to submit additional
evidence and argument on the matter the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs